Cairncross & Hempelmann PC has been sued by venture capitalist Brent Nelson alleging that two courts ruled against him for fraud, violations of the state Securities act and negligent misrepresentations, arising from an employment dispute between a Seattle tech startup and its founders. Details.

No area of social or legal import remains outsides the bounds of Legal Malpractice. Here is a story by the Boston Globe about a rock club which sued its attorneys DiMento & Sullivan after litigation gone bad. Details.

Plaintiffs who asserted 13 causes of action against Sidley Austin Brown have avoided dismissal.Justice Fried in Supreme Court, New York County found claims failure to disclose a conflict of interest sufficient to state a cause of action for legal malpractice. Further, plaintiff’s assertion that defendant should have known that the transactions at issue in the law suit would not pass muster with the IRS was sufficent.

The NYLJ reports that the Lawyers Fund for Client Protection shows a big spike in the monies paid out to clients. This year [2005] the amount was $ 8.1 million. Money for the Client’s fund comes from attorney registration fees.

It is likely that each dollar of re-imbursement represents a legal malpractice incident. For the most part, they are cases where the attorney is going to jail, or is otherwise not a good candidate to sue. Nevertheless, this a grim reminder of the prevalence of legal malpractice in New York.

Here is some information from Daniel Wise of the NYLJ.

Motion to Set Aside Rejected After Defense Goes Unraised

By Daniel Wise
New York Law Journal
April 12, 2006

For the lack of an objection, a $1.4 million jury verdict in an accident case must stand even though the defense had a silver bullet that could have prevented the award, Acting Supreme Court Justice Edgar G. Walker (see Profile) of the Bronx has ruled.

The sole remaining defendant in the case, a car rental company called DL Peterson Trust, had an ironclad defense because the protections against lawsuits provided by the state Workers’ Compensation Law trump state rules on vicarious liability that were in effect at the time of the 2001 accident, Justice Walker held in Caviness v. Sanchez, 16315/02.

However, since the defense did not raise that argument at trial, Justice Walker rejected its post-trial motion to set aside the verdict.

In the lawsuit, Gennell Caviness, a Brinks guard, sued to recover for injuries sustained when an armored truck she was riding in was involved in an accident. She sued both a co-worker who was driving and DL Peterson, which had rented the truck to Brinks. Ms. Caviness sought recovery for injuries to her finger and shoulder, which required two separate surgeries.

The co-worker was clearly immune from suit under the Workers’ Compensation Law, and he was released from the case as soon as the plaintiff rested. But neither side seemed to appreciate the fact that case law also protected the car rental company because of the way the Workers’ Compensation Law is structured.

Under the Court of Appeals’ 1988 ruling in Naso v. Lafata, 4 NY2d 585, Justice Walker ruled, both Brinks and DL Peterson enjoyed the same Workers’ Compensation Law immunity as the co-worker.

Nevertheless, the case proceeded to a verdict against the rental company last June without an objection from the company’s lawyer, Gregg D. Weinstock of Garbarini & Scher.

The failure to object became fatal once the jury was instructed on the issue of vicarious liability, Justice Walker held. In a reference to the issue, he noted that Garbarini & Scher, in its initial post-trial filing, acknowledged it “did not apprehend the significance of the case law discussed.”

Mr. Weinstock declined to comment because, he said, “the matter is in litigation.” However, according to the opinion, Mr. Weinstock submitted an affirmation in which he stated, “At no time during the trial did I affirmatively waive any defense available to my clients with respect to plaintiffs’ claims.”

Even though DL Peterson as a matter of law could not have been held vicariously liable, Justice Walker instructed the jurors that they had to find the rental company liable if they found the driver had been negligent.

Once that erroneous charge had been given to the jury, Justice Walker ruled, it was too late to correct it.

He pointed out that §4110-b of Civil Practice Rule and Laws bars a party from asserting error in a jury instruction unless it does so “before the jury retires to consider its verdict.”

Because no such objection had been made, the judge concluded, “no cognizance may be taken of what would have been clear error in so charging had defendant objected.”

As a consequence, he concluded, the “defendant is precluded from arguing that the theory of vicarious liability is not applicable to the facts of this case.”

Ms. Caviness was represented at the trial by Kenneth D. Brown, and on the post-trial motion to have the verdict set aside by Brian J. Isaac of Pollack Pollack Isaac & DeCicco.

Michael P. Conboy and Mary C. Azzaretto of McAndrew, Conboy & Prisco of Woodbury represented DL Peterson on the motion to reargue the post-trial motion. Mr. Conboy declined to comment.

— Daniel Wise can be reached at dwise@alm.com.

Front page: New York Law Journal headline: Motion to set aside rejected after defense goes unraised. side bar: The law firm acknowledged that it “did not apprehend the significance of the case law” on vicarious liability.

Query: If there is a legal malpractice action to follow this case, will defense counsel argue “strategic choice?” Details in todays NYLJ.

Anthony Lin on The New York Law Journal reports that “A former police union lawyer and labor negotiator convicted on corruption charges in 1998 cannot sue one of his former defense lawyers for failing to request that a lower interest rate be applied to a judgment against him, a Brooklyn appellate court has ruled.

Richard Hartman, who was convicted in connection with the payment of kickbacks by attorneys to secure millions of dollars in legal business from the Transit Police Patrolman’s Benevolent Association, claimed his former counsel, Allen R. Morganstern of Garden City, cost him $55,000 for failing to specify the federal interest rate be applied to a federal judgment against him docketed in state court, as opposed to a higher state interest rate.

In Hartman v. Morganstern, 7337/04, a unanimous panel of the Appellate Division, Second Department, reversed a decision by Nassau Supreme Court Justice Roy S. Mahon (see profile) to deny Mr. Morganstern’s motion to dismiss. The panel said there was no case law or statute requiring a New York state court to apply a federal interest rate in such a situation. As such, any lawyer’s request to apply a lower interest rate would not necessarily have resulted in an actual reduction. Thus, the panel said, Mr. Hartman could not demonstrate that, but for his attorney’s negligence, he would have received the lower rate. “details

Here is an article about the question of legal malpractice in the Ohio Attorney General Democratic primary race and candidate Mark Dann. Details.